The Duty of Lawyers: Virtue Ethics and Pursuing a Hopeless Legal Case

Abstract

The purpose of this article is to present a philosophical argument about legal ethics and to describe why lawyers have an ethical duty not to take on a hopeless case that has no prospects of success. This is despite the principle that everyone should have the right to be heard in a court of law when that person's rights are at risk. In order to understand the underlying policy behind this ethical rule it is important to understand the meaning of the underlying principle that everyone should have access to justice. In this context the function and purpose of a nation's courts are relevant. Although the ethical rules for lawyers in South Africa do not directly prohibit the pursuance of a hopeless case, there is no escaping the fact that the foundational premise of these rules is to further the purpose of the courts. The South African Rules of Court, it will be demonstrated, also aim to further the basic functions of the court, namely access to justice. Lawyers should however, be guided by a moral compass, which is largely based on Aristotelian virtue theory. Popular culture dictates that virtuous lawyers should expose their evil clients to ensure that truth prevails. This stance in which there is a lack of adversarialism is however not popular with lawyers. Is it ever likely that a lawyer will know beyond any doubt that a client is in fact truthful in what hey utter? The article contributes to the preponderance of literature on legal ethics by emphasising the virtues which are needed for sound ethical legal conduct, which are distinct from law and legal codes of conduct.